AMANDA L. HANEGMON, Employee/Appellant, v. CHISHOLM HEALTH CTR. and MINNESOTA HEALTH CARE ASSOC. adm=d by G.E. YOUNG & CO., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
MAY 3, 2007
PRACTICE & PROCEDURE - DISMISSAL. Where the employee failed to comply with discovery requests on multiple occasions and also failed to comply with two orders compelling discovery; where the matter had remained stricken from the trial calendar for more than 20 months, at least in part because of delays attributable to the employee=s failure to comply with discovery requests and court orders; and where the unnecessary costs incurred by the employer and insurer far exceeded the value of the claims at issue, the compensation judge did not err in dismissing those claims with prejudice.
Determined by: Wilson, J., Rykken, J., and Pederson, J.
Compensation Judge: Gregory A. Bonovetz
Attorneys: Thomas R. Longfellow, Longfellow Law Office, St. Paul, MN, for the Appellant. Thomas J. Misurek, Jardine, Logan & O=Brien, Lake Elmo, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge=s dismissal, with prejudice, of her medical request and objections to discontinuance. We affirm.
On December 28, 2001, the employee sustained a work-related injury to her low back while employed as a housekeeping assistant by Heritage Manor [the employer]. The employer and insurer admitted liability for the injury. On March 3, 2003, the employee filed a medical request, seeking approval of fusion surgery recommended by one of her physicians. Hearing on this medical request was held on May 7, 2003, before Compensation Judge Patricia Milun.
At the hearing, the parties apparently agreed to dismiss, without prejudice, the intervention interest of the Minnesota Department of Human Services, which had paid expenses for certain medications, including narcotics. On May 12, 2003, after the hearing, the employee filed another medical request, seeking reimbursement of the prescription expenses paid by Human Services. The following month, on June 2, 2003, the compensation judge dismissed the March 3, 2003, medical request concerning the recommended surgery, concluding that approval of fusion surgery was premature pending the employee=s exploration of alternative treatment options. Much of the judge=s decision dealt with the employee=s use of narcotics. Neither party appealed from this decision.
A conference was held on the employee=s second medical request on July 21, 2003. In a letter of that same date, Thomas Misurek, counsel for the employer and insurer, wrote to Thomas Longfellow, counsel for the employee, as follows: AAs we discussed at today=s Medical Conference, I enclose HIPPA - compliant medical authorizations that I ask you to have your client sign, date and return to me as soon as possible.@ A month later, Misurek contacted Longfellow again, noting that he had received no response to his previous request for authorizations. According to a September 26, 2003, letter to Longfellow, Misurek had finally received signed authorizations on September 22, 2003, but those documents were ineffective, in that the employee had authorized AThomas J. Misurek,@ rather than medical providers, to disclose information. Misurek again requested signed, HIPPA - compliant releases and informed Longfellow that continued failure to respond might prompt Misurek to seek sanctions, including dismissal of the employee=s claim. Misurek also noted that the employee had apparently refused to provide her QRC with signed medical authorizations.
On February 10, 2004, the employer and insurer served and filed a notice of intention to discontinue benefits, seeking to discontinue temporary partial disability benefits effective December 28, 2003, on grounds that the employee had returned to work with no wage loss. On March 24, 2004, the employee responded by filing an objection to discontinuance.
During the pendency of the hearing on the employee=s objection to discontinuance, the employer and insurer filed a motion to compel discovery, still seeking valid medical record releases from the employee. Hearing on the motion was held before Judge Jerome Arnold on April 13, 2004. On May 13, 2004, Judge Arnold ordered the employee to Aexecute HIPPA - compliant medical authorizations for release of all medical records relating to treatment for any [musculoskeletal] condition since the date of her injury on December 28, 2001 and medical treatment to her back previous to December 28, 2001.@ In his memorandum, the judge explained that the limitations the employee had previously imposed on authorizations had prevented the employer from obtaining discoverable medical information.
On May 14, 2004, an administrative conference on the employee=s objection to discontinuance was held before Judge Arnold. In an order issued on May 20, 2004, Judge Arnold denied the employee=s request for recommencement of temporary partial disability benefits. In response, the employee filed another objection to discontinuance.
The employee apparently sent new, HIPPA - compliant medical authorizations to the employer in late May 2004.
The employee=s objection to discontinuance was scheduled to be heard, on an expedited basis, before Judge Gregory Bonovetz on June 17, 2004. The notice of hearing specified that all further inquiries, petitions, or motions were to be directed to that compensation judge. Prior to the scheduled hearing, on June 7, 2004, Judge Bonovetz issued an order consolidating the employee=s two objections to discontinuance.
On June 16, 2004, Longfellow wrote to Judge Bonovetz to Aconfirm@ that the expedited hearing would be reset Awith a consolidation of the issues raised by the employee=s original medical request of February 28, 2003,@ which Longfellow characterized as Aonly partially dealt with@ by Judge Milun=s June 2003 order. Longfellow explained that the employee had undergone all alternative treatment, implying that the recommended fusion surgery was no longer premature. Longfellow also indicated that the employee=s temporary partial disability claim was very close-ended, running only from December 29, 2003, to May 2, 2004, and amounting to $570.79. In this letter, Longfellow did not mention the employee=s May 12, 2003, medical request, which was the only medical request actually still pending at the time.
On June 22, 2004, Judge Bonovetz issued an order consolidating the employee=s two objections to discontinuance and the employee=s AMay 12, 2004,@ medical request.
The employee=s deposition was scheduled to be taken in Hibbing, Minnesota, close to her home in Chisholm, on June 30, 2004. Misurek traveled from his office in Lake Elmo to Hibbing, but the employee did not show up for the deposition. The employee=s deposition was then scheduled for September 13, 2004, but was reset for September 24, 2004, because of a scheduling conflict. Both attorneys were again in Hibbing for the employee=s deposition on September 24, 2004; again, the employee did not show up. In the meantime, several conferences before Judge Bonovetz were cancelled. Subsequently, in February 2005, Judge Bonovetz struck the matter from the active trial calendar, Abecause of the repeated setting and then cancelling of conferences and hearing,@ Auntil such time as counsel for both parties advise the matter is ready for pretrial.@
A fifth notice of deposition was served, setting the employee=s deposition for August 3, 2005, but, because of another scheduling conflict, the deposition was rescheduled for 11:00 a.m., on September 22, 2005, again in Hibbing. The employee attended this time, but she arrived nearly an hour late, and the deposition was adjourned at 1:20 p.m. because of another commitment by Longfellow. A few days later, Longfellow wrote to inform Judge Bonovetz that Athe employee=s deposition has finally been done@ and that another set of medical authorizations, Awithout any annotations,@ had been provided to Misurek at the time of the deposition. For these reasons, Longfellow asked that the hearing be reset.
Misurek immediately responded to Longfellow=s letter by notifying Judge Bonovetz that the employee=s deposition was not Adone@ but had merely been started and then adjourned, prior to completion, because of Longfellow=s scheduling conflict. Misurek further informed Judge Bonovetz that Longfellow had refused to allow completion of the deposition Aunless ordered by the court@ and had also refused to provide the employer and insurer with employment record release authorizations. As such, Misurek contended, the matter was not ready for pretrial, and he requested that a hearing be set for purposes of another motion to compel the employee to cooperate with discovery.
A telephone conference was held before Judge Bonovetz on November 14, 2005. In his subsequent order of November 17, 2005, Judge Bonovetz observed that Longfellow had Avehemently@ objected to any in-person completion of the deposition and to providing releases for wage and personnel records from post-injury employers. Judge Bonovetz was unpersuaded by Longfellow=s arguments and ordered the employee to present herself for completion of her deposition, in person, and to provide Misurek with wage and personnel record release authorizations.
A seventh notice of deposition set completion of the employee=s deposition for June 28, 2006, again in Hibbing. Again, both attorneys attended; again, the employee did not. Yet another deposition was scheduled for July 26, 2006, but had to be reset, again, because of a conflict on the part of Misurek. This time, the deposition was set for September 26, 2006.
Both Misurek and Longfellow appeared in Hibbing again for the scheduled deposition. Again, the employee did not attend. According to the transcript, Longfellow advised Misurek at that time as follows:
MR. LONGFELLOW: I was advised by my staff that although my client was reachable by phone, she is not available to get here in person. The order allowing the continued deposition specifically said she had to appear in person. She can=t be here. She apparently thought it was a different day or something, and she has no transportation to get here.
MR. MISUREK: Okay. Tom, there is one other thing that I do want to make a record of, and that=s on the authorizations that we were provided by your office for medical records, at least one of the providers, Fairview-Mesaba Clinic, has indicated on the bottom of the release that the patient contacted the provider and rescinded the release insofar as not allowing any records before the December 28th, 2001 claimed date of injury.
Handwritten notes on the Fairview Mesaba authorization indicate that the restriction on records access had been placed Aper patient 9-18-06.@
On October 23, 2006, Misurek filed a motion for an order of dismissal pursuant to Minn. R. 1420.3700, subp. 1E. In support of the motion, Misurek filed an affidavit, detailing some of the history of the case, with attachments relating to the latest failed deposition and the employee=s most recent restrictions on release of medical information. Longfellow=s response to the motion reads, in its entirety, as follows:
We hereby Object to the Motion for Dismissal. The Employee failed to attend the scheduled deposition on September 26, 2006 due to family health problems. She will complete the Deposition once re-scheduled.
She will also provide signed authorization for release of medical information.
In an order issued on December 5, 2005, Judge Bonovetz found that the employee had failed to comply with discovery orders and had failed to appropriately prosecute her claims for more than 20 months following issuance of the order striking the matter from the active trial calendar. On that basis, the judge dismissed the employee=s claims, with prejudice. The employee appeals.
Minn. R. 1420.3700 provides as follows:
Subpart 1. Generally. Failure to comply with the order of a judge, or the willful failure to comply with the applicable provisions of this chapter or other applicable law, may subject a party or attorneys to any of the following sanctions:
A. continuance of the proceeding;
B. striking of pleadings;
C. preclusion of evidence;
D. evidence sought deemed proven, where a party fails to comply with an order compelling discovery;
E. dismissal of proceedings;
F. to pay the reasonable expenses, including attorney fees, incurred by the other parties due to failure to appear, prepare, or participate in good faith; or
G. other sanction permitted by rule, statute, or case law, as the judge deems just or appropriate under the circumstances.
Dismissal with prejudice is a drastic sanction, which should not be imposed without compelling justification. Cf. Michaelson v. Hamline Twin Cities Real Estate Co., 42 W.C.D. 964 (W.C.C.A. 1990). As the supreme court has explained,
An order of dismissal on procedural grounds runs counter to the primary objective of the law to dispose of cases on their merits. Since a dismissal with prejudice operates as an adjudication on the merits, it is the most punitive sanction which can be imposed for non-compliance with the rules or order of the court, or for failure to prosecute. It should therefore be granted only under exceptional circumstances. The primary factor to be considered in determining whether to grant a dismissal with or without prejudice is the prejudicial effect of the order upon the parties to the action.
Firoved v. General Motors Corp., 277 Minn. 278, 283, 152 N.W.2d 364, 368 (1967).
In the present case, the employee acknowledges that she Aoccasionally made mistakes as she learned the Workers= Compensation System,@ that she Aadmittedly missed several depositions,@ and that she was Aslow to provide authorizations to have her life examined.@ She argues, however, that her conduct does not warrant dismissal with prejudice, in that she made several Aattempts@ to comply with discovery, but Alife circumstances and some understandable questions about the extent of information needed prevented the employee from being wholly compliant.@ Much of the employee=s argument centers on the premise that the information sought was not necessary to allow the employer and insurer to defend against the employee=s claims. We are not persuaded.
The employee=s objections to discontinuance and the May 12, 2003, medical request had been pending for more than two years and had been stricken from the trial calendar for more than 20 months by the time the order for dismissal was issued. During this period, hearings and conferences were repeatedly set and cancelled, and the employee repeatedly failed to comply with discovery requests, necessitating two motion hearings and two orders compelling discovery. The employer and insurer=s attorney traveled to Hibbing several times without being able to complete the employee=s deposition, twice after the employee had been ordered by a compensation judge to appear. In addition, after numerous delays and failures to provide the employer and insurer with the medical record releases to which they were entitled, the employee yet again placed a restriction on at least one medical record release authorization, this time in direct contravention of a judge=s order. While Longfellow contends that the employee failed to attend her last scheduled deposition due to Afamily health problems,@ the employee submitted no affidavit to the compensation judge to this effect, no further explanation was given, and the employee=s excuse does not appear to be consistent with the explanation given by Longfellow to Misurek on the date of the (fourth) failed deposition. Under these circumstances, it would not have been unreasonable for the compensation judge to have concluded that the employee=s excuse was simply part of a continuing pattern of noncompliance with requests for discovery, court orders, and the terms of the workers= compensation act.
The dismissed pleadings at issue cover a very limited period of temporary partial disability benefits and some prescription expenses already paid by the Department of Human Services. Certainly the unnecessary costs already incurred by the employer and insurer far exceed the value of the employee=s claim. Compare Lamkin v. JWS Homes & Contracting, Inc., No. WC06-294 (W.C.C.A. Apr. 10, 2007). The employee was represented by experienced counsel throughout the course of the proceedings, and there is no argument that she was unaware of the terms of the compensation judges= orders or her obligation to comply. In fact, the employee=s behavior here can only be characterized as egregious. We therefore affirm the order dismissing the employee=s objections to discontinuance and May 12, 2003, medical request, with prejudice.
 The medical request was completed on February 28, 2003, and the parties at times use that date when referring to that pleading.
 According to the compensation judge=s decision.
 HIPAA, or the Health Insurance Portability and Accountability Act, establishes rules governing privacy of health data, among other things.
 An apparent typographical error in the compensation judge=s June 22, 2004, order for consolidation designates the date of the medical request as May 12, 2004, rather than May 12, 2003, and this typographical error was carried through in numerous subsequent pleadings and orders. The employee has filed only two medical requests: the request filed on March 3, 2003, which was disposed of by Judge Milun=s June 2, 2003, decision on surgery, and the request filed on May 12, 2003, concerning prescription expenses paid by the Department of Human Services.